United States Court of Appeals

For the Eighth Circuit

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No. 12-2716

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Shawn Jones

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Northern District of Iowa - Ft. Dodge

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 Submitted: April 10, 2013

 Filed: May 2, 2013

[Unpublished] 

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Before RILEY, Chief Judge, BYE and BENTON, Circuit Judges.

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PER CURIAM.

Shawn Jones appeals the sufficiency of the evidence to support his conviction

for conspiracy to distribute methamphetamine in violation of 21 U.S.C.
§ 841(b)(1)(A) and the district court's1

 admission of an allegedly suggestive

photographic lineup at trial. We affirm.

I

In 2009, law enforcement officers conducted two controlled purchases of

methamphetamine from Jay Monson at his residence in Clear Lake, Iowa. After the

second purchase, officers executed a search warrant and seized three pounds of

methamphetamine and several thousand dollars from Monson's residence. Following

his arrest, Monson implicated Shawn Jones, among others, in a conspiracy to

distribute methamphetamine from Mexico to Iowa, by way of California.

Monson then participated in a controlled investigation involving numerous

recorded phone calls between the named co-conspirators. During their conversations,

the co-conspirators discussed past drug transactions, drug debts owed, and plans for

future drug transactions. Jones made several references to Monson's need to

"settle-up" or "square up," regarding their outstanding drug debt.

In November of 2009, Monson and the named co-conspirators arranged for the

transport of several pounds of methamphetamine over three trips from Mexico to

California to Iowa. In the first transaction, Jones delivered one pound of

methamphetamine to Monson in exchange for $18,000. In the second, Jones delivered

three pounds of methamphetamine to Monson in exchange for $54,000. Monson's

cellular phone bill documented calls between Monson and Jones on and around the

dates of the two transactions. In December of 2009, Monson and Jones participated

in a third transaction in which Jones assisted a co-conspirator in transporting and

1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa.

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delivering about one pound of methamphetamine from California to Iowa in exchange

for $18,000.

During the first transaction in November, Monson and Jones visited a muffler

shop owned by Monson's friend, Clint Wendel, to replace the battery in Jones's car. 

Prior to trial, an agent presented Wendel with a photographic lineup and asked him

to identify the person he had seen with Monson on that day. Wendel selected Jones's

picture and said he was not certain that was the person with Monson, but the photo

"looked like a clean-cut guy like Monson would hang around with." At trial, the

district court admitted the lineup into evidence. The agent testifying regarding the

lineup explained it had been generated by a computer program based on Wendel's

recollection of the November meeting.

At trial, the government also introduced the testimony of James Olson, another

co-conspirator. Olson testified he had met Jones in California and later met the other

co-conspirators through Jones. Together, they had made an agreement to transport

one pound of methamphetamine to Monson. Olson, assisted by Jones, had received

one pound of methamphetamine at the United States/Mexico border and driven to

Iowa with the drugs hidden in the vehicle. Olson testified that Jones had assisted in

hiding the drugs within the vehicle, repackaging the drugs with a disinfectant cleaner

and vacuum sealed plastic, and advising Olson regarding routes and procedures to

avoid detection by law enforcement. Once Olson had delivered the drugs to Monson,

Olson returned to California with $18,000, which he and Jones then delivered to a

co-conspirator in Mexico. Olson also testified as to a second, similar transaction

involving Monson and Jones and the movement of one pound of methamphetamine

from the United States/Mexico border.

A jury convicted Jones of conspiracy to distribute 500 grams or more of a

mixture or substance containing 50 grams or more of actual methamphetamine. The

district court sentenced Jones to 360 months of imprisonment and 10 years of

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supervised release. Jones now appeals, challenging the sufficiency of the evidence

against him and the admission of the photo lineup at trial.

II

Jones first challenges the district court's admission of evidence regarding the

photographic lineup. The admissibility of a pretrial identification is reviewed de novo

using a two-part test. United States v. Donelson, 450 F.3d 768, 772 (8th Cir. 2006). 

First, we determine whether the identification procedure used was "impermissibly

suggestive." Id. (quoting United States v. Williams, 340 F.3d 563, 567 (8th Cir.

2003)). If so, we examine whether, under the totality of the circumstances, the

suggestive procedure created a very substantial likelihood of irreparable

misidentification. Id. at 773 (internal quotation and citation omitted). Prior to trial,

Jones sought to exclude evidence of the photo lineup, arguing he had been the most

clean-cut individual pictured and Wendel's identification had been based not on his

memory of the individual in question, but on his idea of someone with whom Monson

might associate. Jones renews these arguments on appeal.

The district court found Jones had suffered no due process violation with

respect to the photo lineup and denied Jones's request to exclude evidence thereof at

trial. First, it found the government had engaged in no impermissible conduct with

regard to the photo array. See Perry v. New Hampshire, 132 S.Ct. 716, 728 (2012)

("The fallibility of eyewitness evidence does not, without the taint of improper state

conduct, warrant a due process rule requiring a trial court to screen such evidence for

reliability before allowing the jury to assess its creditworthiness."). Second, the

district court examined the photos used in the lineup and determined, contrary to

Jones's argument, that Jones was not the only clean-cut individual pictured. Finally,

with respect to Wendel's statement about the kind of person he expected Monson to

"hang around with," the court emphasized Jones's opportunity to cross-examine

Wendel on the stand, before the jury.

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We agree with the district court. Each photograph depicts a Caucasian man

with short hair, light eyes (with the exception of one photograph), and facial hair. 

While the men exhibit different lengths and styles of facial hair, these variations do

not indicate the lineup was "impermissibly suggestive." See Schawitsch v. Burt, 491

F.3d 798, 803 (8th Cir. 2007) ("Reasonable variations in hair length and facial hair are

not impermissibly suggestive, especially as they can vary on any given person at

different times."). Moreover, Jones was afforded an opportunity to attack the

credibility of Wendel's identification at trial. "Once a pretrial identification has been

admitted . . . it is for the jury to weigh it against countervailing evidence." Donelson,

450 F.3d at 773. Jones's motion to suppress the evidence of the photo lineup was

properly denied.

Jones next argues there is insufficient evidence to support his conviction for

conspiracy to distribute methamphetamine. We review questions of sufficiency of the

evidence de novo, viewing the evidence in the light most favorable to the verdict. 

United States v. Moe, 536 F.3d 825, 832 (8th Cir. 2008). "When reviewing the

sufficiency of the evidence to support a conspiracy conviction, we will affirm if the

record, viewed most favorably to the government, contains substantial evidence

supporting the jury's verdict, which means evidence sufficient to prove the elements

of the crime beyond a reasonable doubt." United States v. Lopez, 443 F.3d 1026,

1030 (8th Cir. 2006) (en banc).

To convict Jones of conspiracy to distribute methamphetamine, the government

had to prove (1) Jones and at least one other person reached an agreement to distribute

methamphetamine, (2) Jones voluntarily and intentionally joined the agreement, and

(3) at the time he joined the agreement, Jones knew its essential purpose. United

States v. Harris, 493 F.3d 928, 931 (8th Cir. 2007). Jones argues that apart from the

witness testimony offered at trial, the government's corroborating evidence does not

support his conviction. Specifically, he notes Monson's phone bill documents only

calls from Monson to Jones, rather than from Jones to Monson. In addition, Jones

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suggests his responses to Monson during their documented conversations are "at best

ambiguous in relation to drug activity." Finally, he contends both Monson and Olson

had an incentive to fabricate their testimony in exchange for reductions in sentence

through "substantial assistance" to the government.

Jones's arguments are unavailing. Two co-conspirators testified regarding their

direct communication and involvement with Jones in the trafficking of

methamphetamine from Mexico through California to Iowa. Between the two

witnesses, five pounds of methamphetamine can be traced to Jones. The credibility

of those witnesses in light of any deals struck with the government was an issue

presented to the jury and one we should not disturb on appeal. See United States v.

Jefferson, 652 F.3d 927, 930 (8th Cir. 2011) (noting a "jury's credibility

determinations are virtually unreviewable on appeal" (internal quotation marks and

citation omitted)). As to the government's alleged lack of corroborating evidence, we

have previously held a jury verdict may be based solely on the testimony of

cooperating witnesses. United States v. Smith, 632 F.3d 1043, 1046 (8th Cir. 2011). 

Accordingly, we conclude the evidence was sufficient to support the jury's finding that

Jones participated in a conspiracy to distribute methamphetamine.

The judgment of the district court is affirmed.

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